New Massachusetts Opinion on Duty and Foreseeability

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts’ highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff’s police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff’s theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a “special relationship” the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by “impaired” patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to “an innocent third-party bystander” was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.
The Maryland Court of Appeals faced the same fundamental issue: whether Lily owed a duty to the decedent, in this case for the inadequate warning to the driver that she might cause a car accident as the result of the medications. Plaintiff’s argument was that the driver was on Humalog and suffered hypoglycemic reaction which caused her to black out (which caused the car accident). Humalog’s manufacturer owed a duty to protect users of the roads by warning them of the risk of hypoglycemia that the drug imposed.

The court adopted Justice Cardozo’s logic that we all read in law school during the first few weeks of torts in Palsgraf v. Long Island Railroad, finding that because there was no direct connection between Eli Lily’s warnings and the victim, finding a duty from Lilly to decedent would be tantamount to Lily owing a duty to everyone.

I’m not sure why this is necessarily a bad thing: Eli Lily would be negligent and the victim of the accident died. Of the two, I’d rather the Lily pay for that loss than the Plaintiff. But I also understand the practical concerns of why my reasoning – and Judge Andrews’ reasoning in Palsgraf, has not carried the day in American jurisprudence.

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